The Expectation of Stalking
Recently, I posted an article on Mastodon about how the US Postal Service is scanning Americans’ social media accounts looking for “inflammatory” posts, typically relating to plans to attend or organize protests, ostensibly under the pretense of “national security.” The article attracted this short discussion wherein one of my readers asserted that this story was not a privacy invasion – nor even a privacy issue – because the information was posted in a public place – a public social media profile. I do agree with this person to some extent, so this made me think: why does this feel such an invasion of privacy even though it’s kind of technically not?
The “Expectation of Privacy” is a legal test that began in 1967 with the US case Katz v United States. Charles Katz had used a public phone booth near his Los Angeles apartment to submit gambling information across the country to bookies in both Boston and Miami. What he didn’t know was that the FBI had begun to investigate his illegal gambling and had wiretapped the phone booth without a warrant. This is where things got sticky. The FBI believed that since the phone booth was public, it therefore constituted a public place where you should have no expectation of privacy. However, Katz felt that the phone booth suggested a reasonable expectation of privacy – which makes sense, honestly. The doors close and stuff, who wouldn’t expect at least SOME privacy in that situation? You would certainly be annoyed and offended if some stranger stuck their ear to the door to try and eavesdrop, right?
The Expectation of Privacy test has two parts, and the second part is – I think – what really makes it work: “the expectation is one that society is prepared to recognize as reasonable.” I can drop my pants and start urinating in Times Square and expect privacy, but society doesn’t agree. Just as with debates about crime and legalization of various vices, there are obvious situations where we as a society can all generally agree that you have no expectation of privacy. We all may disagree on whether or not hard drugs should be legal, but we can all generally agree that murder should not be. We may all disagree on whether or not scraping public social media is a privacy violation or not, but we all generally agree that scraping texts without some kind of legal validation definitely is.
Let me back up: this blog post is not here to argue where the expectation of privacy begins and ends. Smarter people than me have spent decades fighting over that and likely will spend decades more. Rather, this post is to argue that what we experience today is not a violation of our expectation of privacy: it’s a violation of our expectation of not being stalked. And that is what bugs me about USPS – or any public (particularly government) entity – scraping public social media posts. It’s one thing for someone to stumble across a violent post and go “whoa, somebody needs to take a look at this.” It’s another thing for someone to look at every post with the intention of finding a problem.
About a year ago, a friend randomly texted me as I was leaving the grocery store to say that she had seen me. My first thought was “how did she recognize me? Everyone is wearing a mask!” Then I immediately remembered I have very unique, prominent, and often-visible arm tattoos. I don’t remember what my reply was, but obviously it wasn’t offense. I was at the grocery store in a T-shirt, I had no expectation of being anonymous or not-recognized. Just because I wasn’t going around wearing a name tag doesn’t mean I expected not to be seen or noticed. However, my friend didn’t follow me home from there. She didn’t write it down in a notebook and go “1:15 PM: saw Nate at the grocery store on the intersection of Main and 6th.” She didn’t ask me what I bought or why I was there. And this is what makes the abuse of our public use of technology so offensive to me.
In the above story, the USPS is actively scanning people’s public posts and looking for information. This is the issue that I personally have with surveillance, and I don’t think it’s a stretch to assume that most of my readers will agree with me on this. I have no issue with the public space being legally open to scrutiny. If I drive my car down a street, I fully expect that somebody will see it, and maybe even say that in court as part of a witness testimony about something. But imagine if every person I passed on the street posted to a Twitter account saying “Nate’s car was at this intersection at this time,” especially if there's nothing noteworthy happening. That’s different. There’s a huge difference between happening to notice or see something in a public space and actively stalking someone in a public space. And furthermore, there’s a huge difference between saying “I noticed that guy acting suspicious, let me follow up on that” and following up on every person you see even if they haven’t done anything suspicious. As most of us know, if you go looking for a specific problem, you can probably find it.
As I mentioned, I have tattoos. Let’s say someone sees my tattoos and goes “oh that guy’s a thug, he’s up to no good” and begins to follow me around. This may come as a shock to some of you, but I am not a perfect person. If you follow me for long enough, you’ll certainly find me doing something wrong – either an illegal turn, speeding a little over the speed limit, jaywalking to the convenience store across the street, etc. But actually, a stalker could very easily catch me planning arson on any given day at work. I regularly joke at my day job about just burning down the building when the project starts to get stressful or go wrong. I realize that may not be funny to everyone, I have a very dark sense of humor. My coworkers, however, have worked with me for almost two years. They know I’m not a pyromaniac, they know I have no interest in actually burning anything down, and they know I’m just venting, but imagine a total stranger who – again – just says “that guy is sus cause of his tattoos.” Aha! He said ‘let’s just burn the building down, no more problem!’ Clearly he’s planning arson! Context matters. Now granted, this is not a one-to-one comparison. The arson joke is one I only make when there’s nobody around – no clients, no other contractors from other companies, etc – and only to my coworkers. I expect that I have some privacy because I’m being careful where I make that joke. But the point is, if somebody wanted to find illegal behavior from me, they don’t have to look hard to make a case. Probably not one that would stand up in court, but still.
This is what companies do to us every day, and this is what USPS is doing and I have a lot of issues with this (as you probably do, if you've read this far). I have no issues with someone seeing me do something wrong in public and reporting it. I have no expectation of privacy. But I do have an expectation to not be stalked, especially if I’m not doing anything wrong. The ever-annoying “nothing to hide” argument says that if you aren’t doing anything wrong, you have nothing to fear. However, I view it the other way around: if I’m not doing anything wrong, you have no reason to be looking at me. If I’m under suspicion, it should be – and is – very easy to get a warrant to do some digging. And if you come to my door with a warrant, I will begrudgingly let you in. However, I take great offense to somebody keeping tabs on me “just because.” Maybe someday I might maybe possible do something wrong possibly in some way maybe. So let’s keep a permanent record of this person and watch them just in case. There's no way that can go wrong.
This is the opposite of freedom. This is a panopticon, and studies have shown that people who believe they are under surveillance act differently. They are more afraid to educate themselves, even on important issues, lest they be mistaken for a troublemaker. They’re more afraid to speak out because it might come back to haunt them. They’re more afraid to stand up for something unpopular that they believe is right. Just because nobody has put a physical gun to your head doesn’t make this any less coercion or threat. When I step out my door or post something to a public forum, I have no expectation of privacy. I accept that I have no control over who will see me, what they’ll say, who’ll they’ll tell, or any of that. But I think the moment that person decides to target me – to start following me, taking notes, trying to find all my accounts across various sites, and stalking me – for any reason, whether it’s “for my own safety” or “because I look a certain suspicious” or whatever – now we have a problem. I have no expectation of privacy in public, but I do expect not to be stalked.